Padgett Law Group (PLG) Attorneys Steven Hurley and Marissa Yaker had the distinct pleasure of working alongside other firms in drafting and collaborating for an Amicus Brief with the United States Supreme Court in Support of the Respondent in Dennis Obduskey v. McCarthy & Holthus LLP, Case No. SC 17-1307 on behalf of the Legal League 100, an industry trade association in which PLG is a member. The question presented before the United States Supreme Court is whether the Fair Debt Collection Practices Act (“FDCPA”) applies to the enforcement of security interests on property through non-judicial foreclosure proceedings. The Amicus Brief was filed today, Wednesday, November 14. PLG will provide updates on the case as necessary.
Click here to read the full release.
On October 31, 2018, the Fourth District Court of Appeal in Torres v. Deutsche Bank National Trust Company, Case No. 4D17-2727 (Fla. 4th DCA October 31, 2018) held that “evidence that a document was drafted is insufficient, standing alone to establish that it was in fact mailed. Rather, the mailing must be prove by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed or a return receipt.” citing Citibank, N.A. for WAMU Series 2007-HE2 TR. v. Manning, 221 So. 3d 191, 192 (Fla. 5th DCA 2017) (quoting Allen v. Wilmington Tr., N.A., 216 So. 3d 685, 688 (Fla. 2d DCA 2017). The Fourth District Court of Appeal went onto elaborate that if the evidence comes by way of witness testimony, the witness must have personal knowledge of the company’s general practice in mailing letters. Mere reliance on the boarding process to prove that the notice letter was mailed is insufficient.
Local Rule 6007-1 – Surrender of Collateral in Chapter 13 Cases
Scope and Timing
This rule was created in connection with the uniform plan opt-out and governs the surrender of collateral in chapter 13 cases. The rule does not apply if the court orders otherwise, or Debtor and Creditor enter a written agreement (cannot impose personal liability or limit discharge).
Debtors can either surrender pre-confirmation via the plan (Paragraph 7 of plan), or post-confirmation via a Surrender Notice (Paragraph 20 of plan). These procedures must commence within 7 days of the confirmation order, or between 21 – 28 days of Surrender Notice. Either:
Details matter, especially with the Middle District of Georgia’s local bankruptcy plan. The Middle District of Georgia, like the Northern and Southern Districts of Georgia, opted out of the national bankruptcy plan, as did the majority of the federal judicial districts.
What makes the Middle District of Georgia’s local plan different than Georgia’s Northern and Southern Districts’ plans? The surrender provision. Specifically, the termination of the automatic stay as to sections 362 (debtor) and 1301 (co-debtor stay) limits co-debtor stay relief to the collateral and is effective on confirmation. If a creditor plans to proceed against the co-debtor personally, the plain reading of the Middle District of Georgia’s plan requires additional stay relief against the co-debtor. If the lender is interested in the collateral only, no additional relief is needed.